The revolution in scientific technology is waving like fast flowing air and water in the modern world of advancement. The field of law is also under the shadow of scientific advancement. Judicial system, particularly the criminal justice system, is not untouched with the advancement of science. A volcano has emerged in the age old established laws of crime detection and investigation with the introduction of view techniques of crime detections like Brain Mapping, Narco-Analysis, Hypnosis, P-300 and Polygraph Test in laws of evidence and criminal jurisprudence. While walking on the path of technology we can not forget that we are human beings creation of God not Robots.
Memory is gift of God and science has no right to encroach on that personal property. When we test the validity of this test on the touchstone of Constitution, long established criminal jurisprudence and rights of the accused then problem arises. On one hand evidences are authentic, easy for the judges to inflict death sentence, guilt is proved beyond all reasonable doubts and law should change according to the need of time on the path of progress. But on the other hand it is rape of the mind of the accused. Is judiciary so weak that it allows for the rape of mind of accused? A computerized handwriting tool is a much better option to detect a criminality of accused instead of lie-detector and polygraph tests; which infringes privacy of human mind.
The element of criminal instinct is present in the nature of human being since the birth of the cosmos. An effort has been made to discover the root cause of crime but the search, so, far has been in vain. When crimes are emerging on every inhabited patch of the globe, further more attempts to stop crime are made. The revolution in scientific technology is waving like fast flowing air and water in the modern world of advancement. Scientific inventions and discoveries are growing at much faster speed in every sphere of life.
Science and Technology has made life of people luxurious in numerous ways. The intersection of law, science and technology has flourished to become a focal point for resolution of many important issues such as scientific evidences, genetic and biological research, cloning and privacy of nervous system of person. Science and law are inter dependable. The field of law is also under the shadow of scientific advancement. Judicial system, particularly the criminal justice system, is not untouched with the advancement of science. A volcano has emerged in the age old laws of crime detection (investigation), long established laws of evidence and criminal jurisprudence with the introduction of view techniques of crime detections like Brain Mapping, Narco-Analysis, Hypnosis, P-300 and Polygraph Test. These advanced crime detection tools has emerged as the most powerful branch in law which are termed as Neuro Law helping the Law Enforcement Agencies in administration of the Criminal Justice System.
The Most important function of scientific investigation is to convert suspicion into reasonable certainty of either guilt or innocence. The foundation of criminal justice system is to prove the guilt of accused beyond all reasonable doubt and to protect the innocent from wrongly conviction. This is all possible by the search of truth .On the way of Scientific evidences such as biological evidence cannot tell a lie and decision arrived at by such an evidence is said to be justice through science. The latest technique to elicit truth from suspect has become a topic of debate in context of its admissibility that is Narco Analysis. A generally acceptable scientific evidence which is to be acceptable to courts of law and scientific community is known as "Forensic" evidence. Such evidence must satisfy the test of admissibility according to the Indian Evidence Act, 1872. But the problem is admissibility of evidences given under neuroscience which are considered as Rape of mind of person. As it has destroyed safeguard exist in Article 20(3) of constitution of India , Right to Privacy is available under the Constitution of India as such no person can be compelled to undergo any scientific test for collective evidence against himself or herself. The problem has become grave with the coming into scene "Neuroscience".
Neuroscience: Mother of Narco Analysis TestThe study of brain and the nervous system is called, Neurosciene. While investigating the cases some criminals prove to be a hard nut to crack. In such cases, to procure evidence, the investigating teams generally end up by adopting unfair and illegal means. Inspite of adopting unfair means, it is fruitful to rely on science. With the advance scientific discoveries, working with their experts, the investigating officer can read the mind of suspect and dig out concealed information and evidence. The whole neuro law is based on brain science which moreover Indian Constitution have permitted legislative system to take necessary steps in making law for justice through science. According to the Constitution of India, Part IV-A, it shall be the fundamental duties of every citizen of India to develop the scientific temper, humanism the spirit of inquiry and reform ;that has brought volcano in present day administration of criminal justice system.
Neuroscience is an attempt to read brain and mind through it. No body can explain the complete functioning of brain because there is fundamental uncertainty about the mind of others. Neuro-imaging is a process which records different patterns of brain images taken under varying circumstances that may relate with different future behaviors and conditions. Through the help of computer assisted tomography (CAT) the structure of living brain may be revealed. Through positron emission tomography (PET) and magnetic resonance imaging (MRI) different parts of brain functions may be studied. The search for effective aids to interrogation is probably as old as man's need to obtain authentic and truth information. Development of new tools of investigation has led to the emergence of scientific tools of interrogation like Narco Analysis Tests. Such tests are a result of advances in science but they often raise doubt regarding basic human rights and about their reliability.
Meaning: Narco Analysis TestThe term Narco Analysis is derieved from Greek word narkc (meaning anesthesia or torpor) and is used to describe a diagnoistic and psychotherapeutic technique that uses psychotropic drugs, particularly barbiturates, to induce a stupor in which mental elements with strong associated affects come to the surface, where they can be exploited by the therapist. The term Narco Analysis was coined by Horselley. Ever since the first reported use of criminal narco analysis in 1922, the process has been under the scanner with absolutely unflattering results. Narco Analysis was rather unheard in India till recent past. However, it has been in the news in the past one year as a new investigation technique by various investigative agencies in India.
Gist of Narco Analysis Testing ProcedureThe narco analysis test is conducted by mixing 3 grams of Sodium Pentothal or Sodium Amytal dissolved in 3000 ml. of distilled water. Narco Test refers to the practice of administering barbiturates or certain other chemical substances, most often Pentothal Sodium, to lower a subject's inhibitions, in the hope that the subject will more freely share information and feelings. A person is able to lie by using his imagination. In the narco Analysis Test, the subject's inhibitions are lowered by interfering with his nervous system at the molecular level. In this state, it becomes difficult though not impossible for him to lie .In such sleep-like state efforts are made to obtain "probative truth" about the crime.
Experts inject a subject with hypnotics like Sodium Pentothal or Sodium Amytal under the controlled circumstances of the laboratory. The dose is dependent on the person's sex, age, health and physical condition. The subject which is put in a state of Hypnotism is not in a position to speak up on his own but can answer specific but simple questions after giving some suggestions. The subject is not in a position to speak up on his own but can answer specific but simple questions. The answers are believed to be spontaneous as a semi-conscious person is unable to manipulate the answers. Wrong dose can send the subject into coma or even result in death. The rate of administration is controlled to drive the accused slowly into a hypnotic trance.
The effect of the bio-molecules on the bio-activity of an individual is evident as the drug depresses the central nervous system, lowers blood pressure and slows the heart rate, putting the subject into a hypnotic trance resulting in a lack of inhibition. The subject is then interrogated by the investigating agencies in the presence of the doctors. The revelations made during this stage are recorded both in video and audio cassettes. The report prepared by the experts is what is used in the process of collecting evidence. This procedure is conducted in government hospitals after a court order is passed instructing the doctors or hospital authorities to conduct the test. Personal consent of the subject is also required.
Associated Truth Finding TestsApart from Narco test there are also other kinds of tests which are popularly used on the convict for extraction of truth convict for extraction of truth, these are-
It is an examination, which is based on an assumption that there is an
interaction between the mind and body and is conducted by various
components or the sensors of a polygraph machine, which are attached to
the body of the person who is interrogated by the expert. The machine
records the blood pressure, pulse rate and respiration and muscle
movements. Polygraph test is conducted in three phases- a pretest
interview, chart recording and diagnosis. The examiner (a clinical or
criminal psychologist) prepares a set of test questions depending upon the
relevant information about the case provided by the investigating officer,
such as the criminal charges against the person and statements made by the
suspect. The subject is questioned and the reactions are measured. A
baseline is established by asking questions whose answers the
investigators know. Lying by a suspect is accompanied by specific,
perceptible physiological and behavioural changes and the sensors and a
wave pattern in the graph expose this. Deviation from the baseline is
taken as a sign of lie. All these reactions are corroborated with other
evidence gathered. The polygraph test was among the first scientific tests
to be used by the interrogators.It was Keeler who further refined the
polygraph machine by adding a Psycho-galvanometer to record the electrical
resistance of the skin.
Polygraph or Lie Detection Tests:
P- 300 or the Brain Mapping Tests:This test was developed and patented in 1995 by neurologist Dr. Lawrence A. Farwell, Director and Chief Scientist Brain Wave Science, IOWA. In this method, called the Brain-wave finger printing; the accused is first interviewed and interrogated to find out whether he is concealing any information. Then sensors are attached to the subject's head and the person is seated before a computer monitor. He is then shown certain images or made to hear certain sounds. The sensors monitor electrical activity in the brain and register P300 waves, which are generated only if the subject has connection with the stimulus i.e. picture or sound. The subject is not asked any questions.
Dr. Farwell has published that a MERMER (Memory and Encoding Related Multifaceted Electro Encephalographic Response) is initiated in the accused when his brain recognizes noteworthy information pertaining to the crime. These stimuli are called the target stimuli. In a nutshell, Brain finger printing test matches information stored in the brain with information from the crime scene. Studies have shown that an innocent suspect's brain would not have stored or recorded certain information, which an actual perpetrator's brain would have stored. In USA, the FBI has been making use of Brain mapping technique to convict criminals.
Narco Analysis In Indian ContextA few democratic countries, India most notably, still continue to use narco analysis. This has come under increasing criticism from the public and the media in that country. Narco analysis is not openly permitted for investigative purposes in most developed and/or democratic countries. In India, the narco analysis test is done by a team comprising of an anesthesiologist, a psychiatrist, a clinical/ forensic psychologist, an audio-videographer, and supporting nursing staff. The forensic psychologist will prepare the report about the revelations, which will be accompanied by a compact disc of audio-video recordings. The strength of the revelations, if necessary, is further verified by subjecting the person to polygraph and brain mapping tests.
Narco analysis is steadily being mainstreamed into investigations, court hearings, and laboratories in India. However, it raises serious scientific, legal, and ethical questions. These need to be addressed urgently before the practice spreads further. Narco analysis has become an increasingly, perhaps alarmingly, common term in India. It refers to the process of psychotherapy conducted on a subject by inducing a sleep-like state with the aid of barbiturates or other drugs. In a spate of high profile cases, such as those of the Nithari killers and the Mumbai train blasts, suspects have been whisked away to undergo an interview drugged with the barbiturate sodium pentothal.
Self Incrimination v. Truth Serum:Article 20 (3) of the Indian Constitution is the syncrestistic result of the Anglo-saxon jurisprudence and India's realities, culture and ethos, proving once again the cosmological nexus of human rights jurisprudence the world over. The main provision regarding crime investigation and trial in the Indian Constitution is Art. 20(3). It deals with the privilege against self-incrimination. It has its equivalents in the Magna Carta, the Talmud, and the law of almost every civilized country. The privilege against `self incrimination is a fundamental canon of Common law criminal jurisprudence.
The Characteristics of this Principle are:
# The accused is presumed to be innocent,
# That it is for the prosecution to establish his guilt,
# That the accused need not make any statement against his will.
These propositions emanate from an apprehension that if compulsory examination of an accused were to be permitted then force and torture may be used against him to entrap him into fatal contradictions. The privilege against self-incrimination thus enables the maintenance of human privacy and observance of civilized standards in the enforcement of criminal justice.
Art. 20(3) which embody this privilege reads, No person accused of any offence shall be compelled to be a witness against himself.
On analysis, this provision is found to contain the following components:
# It is a right available to a person accused of an offence;
# It is a protection against such compulsion to be a witness;
# It is a protection against such compulsion resulting in his giving evidence against himself.
All the three ingredients must necessarily coexist before the protection of Art 20(3) can be claimed. If any of these ingredients is missing, Art. 20(3) cannot be invoked.
The application of narco analysis test involves the fundamental question pertaining to judicial matters and also to Human Rights. The legal position of applying this technique as an investigative aid raises genuine issues like encroachment of an individual's rights, liberties and freedom. Subjecting the accused to undergo the test, as has been done by the investigative agencies in India, is considered by many as a blatant violation of Art. 20(3) of Constitution.
It also goes against the maxim Nemo Tenetur se Ipsum Accusare that is, If the confession from the accused is derived from any physical or moral compulsion (be it under hypnotic state of mind) it should stand to be rejected by the court. The main issue thus is the question of its admissibility as a scientific technique in investigations and its ultimate admissibility in court as forensic evidence. It is well established that the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani, no one can forcibly extract statements from the accused, who has the right to keep silent during the course of interrogation (investigation). By the administration of these tests, forcible intrusion into one's mind is being restored to, thereby nullifying the validity and legitimacy of the Right to Silence. Right to Privacy has been specifically provided in order to remedy privacy violations that occurred in past authoritarian regimes.
Section 45 of the Indian Evidence Act, 1872 does allow experts' opinions in cetain cases. Section 45 reads as:
When the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impression, the opinions upon that point or persons especially skilled in such foreign law, or of science, or art, or as to identity of handwriting or finger impressions are relevant.
However this section is silent on other aspects of forensic evidence that can be admissible in court in criminal proceedings. The right against forced self-incrimination, widely known as the Right to Silence is enshrined in the Code of Criminal Procedure (Cr.P.C) and the Indian Constitution. In the Cr.P.C, the legislature has guarded a citizen's right against self-incrimination. S.161 (2) of the Code of Criminal Procedure states that every person is bound to answer truthfully all questions, put to him by [a police] officer, other than questions the answers to which, would have a tendency to expose that person to a criminal charge, penalty or forfeiture.
Analysis of Recent Events And Case Laws In IndiaI. In a 2006 judgment Dinesh Dalmia v State, the Madras High Court held that subjecting an accused to narco analysis is not tantamount to testimony by compulsion. The court said about the accused: "he may be taken to the laboratory for such tests against his will, but the revelation during such tests is quite voluntary." In narco analysis, the drug contained in the syringe is the element of compulsion. The rest is technically voluntary.
II. In 2004, the Bombay High Court ruled in the multi-crore-rupee fake stamp paper case that subjecting an accused to certain tests like narcoanalysis does not violate the fundamental right against self-incrimination. Statements made under narco analysis are not admissible in evidence. However, recoveries resulting from such drugged interviews are admissible as corroborative evidence. This is, arguably, a roundabout way to subverting the right to silence — acquiring the information on where to find the weapon from the subject when, in his right senses, he would not turn witness against himself. Arguments have been made that narco analysis constitutes mental torture. It works by inhibiting the nervous system and thus lowering the subject's inhibitions. It is not difficult to interpret this as a physical violation of an individual's mind-space. The State police departments are responsible for generating demand for the process. The decision to conduct narco analysis is usually made by the Superintendent of Police or the Deputy Inspector General handling a case.
III. In Shashi murder case, Court allows narco-analysis. Vijaysen Yadav, the main accused in the disappearance and murder case of Faizabad law student Shashi, has gone through polygraph and narco-analysis test from January 12 to 26. Faizabad Chief Judicial Magistrate Shailesh Tiwari permitted the police on Friday to conduct the tests at the Central Forensic Laboratory in Bangalore.
In his order, the CJM said the tests on Vijaysen will be conducted in judicial custody and prohibited investigating Officer Sharat Chandra Pandey from intervening in any matter during the process of tests. The court also asked him not to accompany Vijaysen to Bangalore.
IV. The Bombay High Court recently in a significant verdict in the case of, Ramchandra Reddy and Ors. v. State of Maharashtra, upheld the legality of the use of P300 or Brain finger-printing, lie-detector test and the use of truth serum or narco analysis. The court upheld a special court order given by the special court in Pune as mentioned above, allowing the SIT to conduct scientific tests on the accused in the fake stamp paper scam including the main accused, Abdul Karim Telgi. The verdict also said that the evidence procured under the effect of truth serum is also admissible. In the course of the judgment, a distinction was drawn between statement (made before a police officer) and testimony (made under oath in court). The Judges, Justice Palshikar and Justice Kakade, said that the lie-detector and the brain mapping tests did not involve any statement being made and the statement made under narco analysis was not admissible in evidence during trial. The judgment also held that these tests involve minimal bodily harm.
VI. Narco-analysis of Moninder Singh Pandher, had started on Tuesday, January 09, The narco-analysis test of the prime accused in the Noida serial murder case Moninder Singh Pandher was conducted at the Directorate of Forensic Laboratory. Pandher and Koli have been accused of serial killing of women and children in Nithari village, in Noida, Uttar Pradesh. The Nodia police had brought Pandher and his servant Surendra Koli to DFS on January 5 for forensic tests. The tests are expected to go on for approximately eight hours, the sources said.
VI. A court in Kerala recently pronounced that no court order is required to do a narco analysis, Disposing of a petition filed by the CBI seeking permission of the court, the magistrate said that filing this type of a plea would only delay the investigation. The court said nobody could stand in the way of the investigating agency conducting tests recognized as effective investigation tools. When the technicalities of the test itself are not clear and uniform, it becomes difficult to accept the stand taken by the court.
It is observed that since time immemorial science has been used in the investigation of criminality of criminals as evidential proof in context of crime commited by them like Forensic Science investigation. Now this interference of science has taken monstrous form when this Narco Analysis test are used in investigation of hardened criminals. While walking on the path of technology we can not forget that we are human beings creation of God not Robots. Memory is gift of God and science has no right to encroach on that personal property. When we test the validity of this test on the touchstone of Constitution, long established criminal jurisprudence and rights of the accused then problem arises.
On one hand evidences are authentic, easy for the judges to inflict death sentence, guilt is proved beyond all reasonable doubts and law should change according to the need of time on the path of progress. But on the other hand it is rape of the mind of the accused. It infringes the right of accused of protection against self incrimination. Problem is that what about traditional criminal jurisprudence which involves Cross Examination. Is judiciary so weak that it allows for the rape of mind of accused? There is already provision for access to personal documents, personal diaries, DNA Tests and Forensic evidences; then now what more is required? No doubt it has benefits thats why passive admission to it is given by all of our judiciary. But question is can we withdraw two fundamental principles of criminal jurisprudence (a)Right of accused against Self Incrimination (b)Right to remain Silence. Every thing will be reversed which has been established for last 100 years in criminal law. With the passage of time this evidence will again be misused by lawyers then what method judiciary will discover? This is a big question mark before our Indian Legal system.
Recently, University of Haifa has come up with a wonderful research with a computerized handwriting tool which it claims can provide ease and increases accuracy over common and verbal methods to detect a lie. They evolved alternative to polygraph test. They have found that these handwriting characteristics differ when an individual is in the process of writing deceptive sentences as opposed to truthful lines. According to researchers, the handwriting tool has the potential to replace, or work in tandem, with popular, verbal-based lie detection technology such as polygraph to ensure greater accuracy and objectivity in law enforcement deception detection. The researcher observes that these handwriting tools provides authenticity and accuracy over common and verbal methods. Our judiciary must take these into consideration.
# Pradeep Kumar, Philosophy of Crime, Deep & Deep Publications Pvt. Ltd., New Delhi,2004,p.11.
# 'Science and Technology Studies', Retrieved from http://en.wikipedia.org/wiki/science-and-technology-studies, Visited on 5 March, 2009.
# Retrieved from <www.si.edu/science-and-technology>,Visited on 5 March, 2009.
# Retrieved from < http://www.abanet.org/scietech>, Visited on 9 March, 2009.
# Neuro Law, Retrieved from <http://en.wikipedia.org/wiki/Neurolaw>,Visited on 5 March, 2009.
# Retriever from <www.tawandscience.com/>, Visited on 9 March,2009.
# "Rape of the mind", Retrieved from <raghurama.sulekhar.com>,Visited on 20 Feb., 2009.
# Art. 20(3): 'A person can not be compelled to be a witness against himself".
# Art. 21 of the Constitution of India.
# Teeku Dutta v. State, AIR 2004 Delhi 205(207).
# Crime Scene Investigation', Retrieved from <www.crime-scene-investigator.net>, Visited on 5 March, 2009.
# Seventh Schedule of Indian Constitution provides for Institutions for Scientific or Technical Education under entry 64, 65, 66 of List 1: Union List of Constitution of India.
# Art. 51-A (h), The Constitution of India.
# Satyendra K. Kaul and Mohd. H. Zaidi, Narco Analysis,Brain Mapping,Hyponsis & Lie Detector Tests in Investigation of Suspect, Alia Law Agency, Allahabad,2008, pp. 109-110.
# Retrieved from<http://www.articlesbase.com/law_artcle/Narcoanalysis>,Visited on 16 March,2009.
# Subhojyoti Acharya, Is Narco Analysis a Reliable Science?,Retrieved from http://www.artclesbase.com/law_article/narcoanalysis, Visited on 16 March, 2009.
# Op.cit, 14, Satyendra K. Kaul and Mohd. H. Zaidi, pp. 249-280.
# Vijay Kumar, Narco Analysis,p 300 Tests: What Are These?, Retrieved from<http://www.rediffmail.com>,Visited on 17 March, 2009.
# T. Sunderramanthan, Digging and Unearthing Truth: A True Test For the Truth Serum, The Journal of National Law University, Vol. 5, No. 1, September, 2007, pp. 104-117.
# Art. 20(3) states: No person shall be compelled to be a witness against himself in any criminal case.
# Ketan Mukhija, Right Against Self Incrimination: Questionning the Ambit of the Constitutional Mandate, Retrieved from<http://www.lectlaw.com>, Visited on # 17 March, 2009.
# It Means: No man, not even the accused himself can be compelled to answer any question, which may tend to prove him guilty of a crime, he has been accused of'.
# (1978) 2 SCC 424.
# Article 21 of the Constitution of India.
# Sheetal Asrani-Dann, The Right to Privacy in the Era of Smart Governanace: Concerns Raised By the Introduction of Biometric-Enabled National ID Cards in India, The Journal of India Law Institute, Vol. 47, No. 1, January-March, 2005, pp. 53-95.
(2007) 8 SCC 770.
# Lie Detection through handwriting! , The Hindu Business Line, August 30, 2009, p. 16.This research has been headed by Gil Luria and Sara Rosenblum; which has been published in the latest edition of Applied Cognitive Psychology Journal.
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